Page 38 - Expert Witness

Phase Activity Phase or Activity Description Practitioner’s Potential Services
Calculation and Distri- Prepare a final calculation of the
bution of Judgments amount of damages, including applica-  Calculation of amounts award-
and Awards ble pre- and post-judgment interest, and ed
any penalties, attorney fees; or exem-
plary punitive, or other damages
awarded by the court.

Appendix J, "Case Study — Shareholder Dispute," demonstrates a simple shareholder dispute as it goes
through the civil litigation process.

Overview of Criminal Proceedings

The practitioner also may serve as an expert witness or a consultant in criminal litigation. In some cases,
civil claims and criminal charges may be filed together, requiring consideration of the unique aspects of
criminal litigation and the consulting services to be provided. Differences exist between the federal civil
and criminal litigation processes, some of which are described herein. However, much of the guidance
related to civil litigation contained in this practice aid also may apply to criminal litigation support en-
gagements.

In criminal litigation, the federal government attempts to identify and arrest individuals involved in ille-
gal criminal activity and successfully convict, punish, and fine the violators, as provided under the law.
The risk of punishment, including imprisonment, drives many of the differences between the civil and
criminal litigation processes.

In criminal litigation, the party that brings the criminal complaint is the prosecution, and the legal coun-
sel leading the case is the prosecutor. The party subject to the criminal claims is the defendant, just as in
a civil litigation case. The prosecutor always represents the federal government, frequently referred to as
the State, even when the prosecuting party is the U.S. federal government.

The Constitution provides increased protection to a criminal defendant, as compared with a civil defend-
ant. The Fourth Amendment of the Constitution prohibits unreasonable search and seizure. fn 16 The
Fifth Amendment protects the defendant from unwanted self-incrimination, requires a grand jury in-
dictment for specified crimes, prohibits double jeopardy, and provides the right to due process. fn 17 The
Sixth Amendment guarantees the right for a trial by a jury of peers, the right to be represented by legal
counsel, and other measures. fn 18

Most of the time, the practitioner’s involvement in criminal litigation cases will be limited to white col-
lar crimes, such as fraud, financial statement misrepresentation, or insider trading, and will focus on fi-
nancial forensic investigation procedures designed to identify and reconstruct the improper and poten-
tially illegal flow of monies.

fn 16 See www.law.cornell.edu/constitution/billofrights.

fn 17 Ibid.

fn 18 Ibid.

36 © 2020 Association of International Certified Professional Accountants